2013 ONSC 7080, 2013 ONSC 7080

CITATION : Pritchard v. Furino, 2013 ONSC 7080 COURT FILE NO.: 5528/13 DATE: 20131114 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) FREDERICK PRITCHARD ) ) ) Unrepresented ) Plaintiff ) ) - and - ) ) ) CHRISTOPHER MATHEW FURINO ) ) ) Kelly Fitzpatrick, for the Defendant ) Defendant ) ) ) ) HEARD: September 13, 2013 D E C I S I O N O N C O S T S WILCOX, J. [ 1 ] The Defendant successfully moved for a

summary judgment. Its Notice of Motion for

Summary Judgment sought costs both on the motion and in the action. The decision on the Motion for

Summary Judgment, dated September 26, 2013, required written submissions regarding costs, which were received. [ 2 ] On the subject of costs, s. 131(1) of the Courts of Justice Act provides as follows: - subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, - the court may determine by whom and to what extent the costs shall be paid. [ 3 ] Modern costs rules are intended to serve three purposes:

1) to indemnify successful litigants for the cost of litigation 2) to encourage settlements, and 3) to discourage and sanction inappropriate behaviour by litigants. (Fong v. Chan (1999) (ON CA), 46 O.R. (3d) 330 (Ont. C.A.) [4] The Ontario Court of Appeal has held that cost awards should reflect what the court views as a fair and reasonable amount thatshould be paid by the unsuccessful parties rather than any exact measure of the actual cost to the successful litigant. (Boucher v. PublicAccountants Council for the Province of Ontario (2004) (ON CA), 71 O.R. (3d) 291 and Serra v. Serra 2009 ONCA395 , [2009] O.J.

No. 1905.) It has been held that the ability of a party to pay a substantial cost award was not a relevantconsideration. (Robb v. Saint Joseph’s Health Care Centre [1999] O.J. No. 1461 (S.C.J.). However, the court retains the discretion notto award a successful party its costs in appropriate circumstances, such as where it would have a devastating effect on the party thatwould otherwise pay (Murray v. Murray (2005) (ON CA), 79 O.R. (3d) 147 (Ont.

C.A.). [5] The Applicant was the successful party in this matter and is presumptively entitled to costs. [6] Rule 57 of the Rules of Civil Procedure provides direction for the awarding of costs. In particular, Rule 57.01(1) provides: Factors in discretion – In exercising its discretion under

section 131 of the Courts of Justice Act to award costs, the court may consider, inaddition to the result in the proceeding and any offer to settle or to contribute made in writing, (0.

a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as therates charged and the hours spent by that lawyer; (0.

b) theamount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs arebeing fixed; (

a) the amount claimed and the amount recovered in theproceeding; (

b) the apportionment of liability; (

c) the complexityof the proceeding; (

d) the importance of the issues; (

e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (

f) whether any step in the proceeding was, (

i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessivecaution; (

g) a party’s denial of or refusal to admit anything that should have been admitted; (

h) whether it is appropriate to award any costs or more than one set of costs where a party, (

i) commenced separate proceedings for claims that should have been made in one proceeding, or (ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by adifferent lawyer; and (

i) any other matter relevant to the question of costs. [7] Defence counsel submitted a costs outline which showed flat rate fees on both a partial indemnity and a substantial indemnityscale, broken down between the action and the motion, plus disbursements. [8] The Plaintiff’s response was to request “a breakdown to determine the exact cost, not an overblown flat rate”. I note that it isopen to lawyers to bill by flat rates rather than by hours, in which case the breakdown, if it means the hours spent, is irrelevant.

He alsoquestioned the number of photocopies and the price per copy, but these amount to a small proportion of the total costs. Finally, hesubmitted that the travel expenses (rental car and gas) and hotel do not apply, “because this could have been done by a local lawyer”. Hemight be right about that, or there might have been valid reasons why a local lawyer was not used. Given that the Defendant was an OPPofficer acting in the course of his duty and the title of proceedings should properly have named as a defendant Her Majesty in Right ofOntario, I expect the latter to be the situation.

Be that as it may, a litigant has the right to use a lawyer of his or her choosing. [9] The costs claimed are quite modest, I find, even at the substantial indemnity rate and for a lawyer of defence counsel’s eightyears’ experience. [10] Looking at some of the factors in Rule 57.01, I note that the Statement of Claim claimed $1,000,000 on allegations of a seriousnature involving, as they did, the actions of a police officer in the exercise of his duties. The motion for

summary judgment alsoinvolved numerous issues, including the application of limitation periods and the appropriateness of the allegations in the Statement ofClaim. The Plaintiff’s conduct was not objected to by defence counsel, but the court notes that the Plaintiff did not file the documentsrequired by the Rules on a motion for

summary judgment, but did file a bundle of papers that were not particularly well organized in anyfashion that would assist the court in dealing with the matter efficiently. Litigants who are self-represented are still expected to followthe rules to some extent, even though courts are often somewhat flexible in this regard given the realities of the situation. The Plaintiff’sconduct, however, revealed only the slightest attempt to learn and follow the rules, and was objectionable in that regard. In all thecircumstances, I order that the Plaintiff pay forthwith the Defendant’s costs of the action and of the Motion for

Summary Judgment on apartial indemnity basis of $6,225.00 including fees, disbursements and HST.

___________________________ Justice James A. S. Wilcox Released: November 14, 2013